Question

Case Summary 2.3: U.S. v. Alderman (p. 61)Facts:In 2002, Congress passed the Body Armor Act that made it illegal for anyone who hasbeen convicted of a violent felony to possess body armor. Alderman was convicted of violating the statute and challenged the law’s constitutionality during appeal. Alderman contended that Congress had exceeded its authority because the law was not sufficiently related to interstate commerce.

1. Is the ordinance constitutionally sound?

2. If Alderman purchased the body armor in the same state as it was manufactured, how does that affect “interstate” commerce

Answer 1

Ans.

Alderman filed a motion to suppress certain evidence.? Under the plea agreement, Alderman preserved for appeal the disputed constitutionality of and he entered a conditional guilty plea. ? The district court denied all of Alderman's motions. ??He also sought dismissal of the indictment on various grounds, including that the statute was unconstitutional because its enactment exceeded Congress's authority under the Commerce Clause into vests that have been “sold or offered for sale, in interstate or foreign commerce) (limiting the applicability of The stipulation and factual recitation were designed to ensure that the jurisdictional element of the statute was met. ? Nothing in the record reveals how the vest left the Department of Corrections, but it is undisputed that the vest subsequently came into Alderman's possession. ? The distributor then sold the vest to the Washington State Department of Corrections. ? Specifically, the vest was sold by the manufacturer in California to a distributor in Washington state. ?As part of the factual basis for the plea, the plea agreement included Alderman's admission that the vest had crossed state lines. ?

The case study consists that “body armor” that has been “sold or offered for sale, in interstate or foreign commerce?” is limited by an express jurisdictional condition-the jurisdictional hook limits the reach of §? Unlike the statutes at issue in Lopez and Morrison, it is a crime for a person who has been convicted of a violent felony to “purchase, own, or possess body armor.” We review a district court's denial of a motion to dismiss an indictment on constitutional grounds de novo.”

The Congressional findings cite as examples:?It is in response to a spate of violent clashes involving heavily armored assailants and comparatively unprotected police officers. ?Congress enacted the murder of San Francisco Police Officer James Guelph by an assailant wearing 2 layers of body armor, a 1997 bank shoot out in north Hollywood, California, between police and 2 heavily armed suspects outfitted in body armour, and the 1997 murder of Captain Chris McCauley of the Etowah County, Alabama Drug Task Force by a drug dealer shielded by protective body armour.

To address this threat, Congress elected to forbid violent felons from possessing body armour that had been sold through interstate channels.?? Id. In other words, as with guns and domestic strife, Congress determined that felons and body armor “are a potentially deadly combination nationwide.” ? Id. Congress further found that “crime at the local level is exacerbated by the interstate movement of body armor and other assault gear” and “existing Federal controls over [interstate] traffic [in body armor] do not adequately enable the States to control this traffic within their own borders.” ?Confronted with the reality that “nationally, police officers and ordinary citizens are facing increased danger as criminals use more deadly weaponry, body armor, and other sophisticated assault gear,” Congress concluded that a “serious threat to community safety [is] posed by criminals who wear body armor during the commission of a violent crime.”

We opt to follow the Supreme Court's lead in Scarborough.? No such showing has been made here. ? Morrison, The Supreme Court has cautioned us that “due to respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” ? We disagree. ?Alderman argues that Congress exceeded its authority under the Commerce Clause when it enacted this legislation. ?

substantially affect interstate commerce.”)? (upholding statute criminalizing felon's possession of a firearm because the jurisdictional hook in the statute “insures on a case-by-case basis that the defendant's actions implicate interstate commerce to a constitutionally adequate degree.”?United States v. Hanna, (quoting Scarborough, and stating that Scarborough requires “only ‘the minimal nexus that the firearm have been, at some time, in interstate commerce.’?”); ? see also Cortes, (upholding federal carjacking statute because, taken together, the context of the statute, congressional findings, and the requirement that the car affected have been transported in interstate commerce “ensure that carjackings covered by In considering the continuing vitality of Scarborough, we have consistently upheld similar felon-in-possession statutes. It is difficult to distinguish our case from Scarborough.? Thus, although the Court did not address the statute from a constitutional perspective, it implicitly assumed the constitutionality of the “in commerce” requirement. ?Scarborough, ?Id. As the Supreme Court explained it; ?“[T]here is no question that Congress intended no more than a minimal nexus requirement.” ?“The Court answered affirmatively; ?if the government proved that Scarborough's firearms had at some time traveled in interstate commerce, a sufficiently close nexus between possession of the firearms and commerce was established.” ?As we outlined in Cortes, the Supreme Court in Scarborough “considered whether proof that an illegally possessed firearm previously traveled in interstate commerce was sufficient to satisfy the nexus between possession of the firearm and commerce.” ?1201-02). ?Scarborough, In Scarborough, the Court addressed a jurisdictional element that is nearly identical to the one that limits ?We are guided in our analysis first and foremost by the Supreme Court's decision in Scarborough.

See (noting that Scarborough continues to be viable after Lopez?).? Our review of those authorities does not support this view-Scarborough has not been discarded. ? Alderman posits that Scarborough has been overruled by the Court's recent Commerce Clause cases. ?Although we consider Scarborough as the defining case, we cannot ignore the Supreme Court's shifting emphasis in its Commerce Clause jurisprudence over the past decade.

Jones, (quoting Lopez, ) (internal quotes and alterations omitted); ?see also Raich, (Scalia, J., concurring) (noting that for over thirty years, “our cases have mechanically recited that the Commerce Clause permits congressional regulation of three categories”).? These categories include: ?“(1) the use of the channels of interstate commerce; ?(2) the instrumentalities of interstate commerce ?; ?and (3) activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” ?In Lopez and its progeny, the Supreme Court delineated “three general categories of regulation in which Congress is authorized to engage under its commerce power.” ?

Id. Hence, while we generally analyze cases in the framework of these three categories, we are not obligated to “jam [?] a square peg into a round hole”-especially when that peg has already had a suitable spot of its own carved out by the Court. ?“The categories are a guide, not a straitjacket.” ?United States The “categories have never been deemed exclusive or mandatory.”

(quoting United States v. Rodia, We noted that “the limiting jurisdictional factor [was] almost useless” because “all but the most self-sufficient child pornographers will rely on film, cameras, or chemicals that traveled in interstate commerce and will therefore fall within the sweep of the statute.” ? (emphasis in original, some emphasis omitted). ? In McCoy, we examined a child pornography statute with a jurisdictional provision that allowed the statute to be applied to all child pornography “which was produced using materials which have been mailed or so shipped or transported” in “interstate or foreign commerce.” ?Significantly, the “jurisdictional hook” in this statute is substantially different from the provision we rejected as essentially meaningless in McCoy.

Lopez, ?The majority's approach, in my view, effectively renders the Supreme Court's three-part Commerce Clause analysis superfluous and permits Congress, through the use of a jurisdictional element of any stripe, to “convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”

It is not a valid exercise of Congress's power, I would reverse Alderman's conviction.? And, because I then address the Court's decision in Scarborough, ultimately concluding that Scarborough does not foreclose Alderman's challenge to Congress's authority to regulate possession of body armor. ?Because my decision to part company with the majority is guided by the court's recent Commerce Clause jurisprudence and its treatment of jurisdictional elements, I turn first to the Court's recent Commerce Clause cases.

Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.? Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. ?Congress may regulate the use of the channels of interstate commerce.

Turning first to whether regulation of felon possession succeeds as a regulation of the interstate market for body armor, I conclude that it does not. as controlling uses of that body armor that might affect interstate commerce, see Morrison, ?Even where the regulated activity is not commercial, however, the regulation can still be justified as having a substantial and non-attenuated effect on commerce in two ways-either as a means of regulating the interstate market for body armor.

Likewise, in Lopez, the Court specifically declined to “pile inference upon inference” to find that either the “costs of crime” or impacts on “national productivity” could affect commerce to a constitutionally adequate degree. ? In Morrison, the Court emphasized that it “rejected the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce.” ? However, arguments about these concerns-that possession of firearms near schools and gender-motivated violence, respectively, could and did have significant effects on economic activity-were patently rejected by a majority of the Court over forceful dissents in both Morrison and Lopez. ? I recognize and am sensitive to Congress's concerns that possession of body armor by felons may facilitate criminal acts and that crime can have a substantial impact on the national economy. ? See Morrison. ?Whether Congress may have been regulating felon possession as a means of controlling uses of body armor that might affect interstate commerce in a way that is “significant,” and not “attenuated,” must also be considered.